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TMI Blog2018 (7) TMI 1280X X X X Extracts X X X X X X X X Extracts X X X X ..... y) 2. Issue notice. 3. Mr. Harpreet Singh, Sr. Standing Counsel for the respondent accepts notice. 4. The appellant's grievance in the present proceedings under Section 35G of the Central Excise Act, 1944 is that the final order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) remanding the matter for fresh adjudication by the Commissioner is erroneous, inasmuch as, the Tribunal failed to discharge its obligations to consider the record. 5. The appellant was issued with a show cause notice which alleged that it was receiving services from M/s Jefferies International Limited (JIL) and that for the period 2006-07 it was liable to pay service tax to the tune of `1,37,64,000/- and other amounts and penalties under the Fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raising such bonds. Further the noticee had also entered into a memorandum of understanding on 20-04-2006 with M/s Jefferies London which is not a formal agreement but simply a letter of engagement singyfying intention of both the parties. As per said MOU letter dt : 20-04-2006, Jefferies were to be engaged to act as legal manager and sole placement agent for the noticee in connection with the proposed structuring, issuance and sale of equity linked securities of the noticee company. However the said MOU Letter states in the opening para itself that the final terms and conditions governing the transactions shall be mutually agreed by the company and M/s Jefferies. 34. The letter signed by and exchanged between the noticee and Jefferies, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option shall be exercise during the option period in whole or in part, on one or more occasions, solely at the discretion of the manager by service on the issuer of option notice's on or before the expiry of the option period, such option notice's shall be irrevocable and shall set forth the aggregate principal amount of optional bonds as to which the option is being exercised. 46 to 47 xxx xxx xxx 48. Further M/s Jefferies have not issued any invoice for the underwriting services and the noticee has also not made the remittance from India. The payments has been made to M/s Jefferies by way of their appropriation out of the issue proceeds which is evidenced by them "cross receipt" (wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only legal document following the letter dt : 20-04-2006. Both are genuine documents but the later one is legally binding and the one which has superseded the earlier one, i.e. dt : 20-04-2006." 7. After considering these materials and on the basis of other reasons, the show cause notice was discharged. The appeal, which the Revenue preferred to the CESTAT, disputed the findings. The Revenue's arguments in its grounds of appeal on this point are as follows:- "The adjudicating authority failed to consider that the said letter dated 20.04.2008 was a relevant evidence in the present case and established the fact that the foreign service provider was indeed engaged and appointed by the notice as lead manager and sole placement agent for cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mained as that of an 'issuer of the FCCB' and 'manager to the issue of the FCCB', respectively. Thus, the 'underwriting' was only optional and only an optional accessory or auxiliary service vis-à-vis the essential service provided by the foreign service provider in relation to the raising FCCB of US $ 50 Millions. Therefore, the findings of the Adjudicating Authority were perverse to the extent that in terms of the later and binding agreement dated 30.06.2006, the service provided were 'underwriting service' and not 'Banking and Other Financial service'." 8. In the impugned order the CESTAT noticed this aspect and remitted the matter for de novo fresh consideration by the Commissioner in the following terms. "7. After hearing both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs on both the genuineness of the document (agreement dated 30.06.2006) as well as on its interpretation. Given these facts, if the Tribunal was in doubt as to whether the document was genuine, the least that it could have done was to limit the findings on remand while retaining Revenue's appeal on the file. This Court notices that CESTAT has been repeatedly passing remand orders virtually abdicating its responsibility as an Appellate Court. This trend is unhealthy given that it is the final Court of fact and is required to adjudicate both on the issues of fact and law, especially in matters such as the present one i.e. where the appeal before it was by way of the first appeal. 11. In these circumstances, this Court hereby sets aside the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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